Sacramento daily record-union. [volume] (Sacramento [Calif.]) 1875-1891, 1887-11-02
LOCAL OPTION.
FULL DECISION OF THE STATE
SUPREME COURT.
Restriction and Prohibition of Lii.
quor-Seliing are Cor ,stitutionsl
Judge Mcfarland. Dissents.

Judge Mcfarland. Dissents.
Following is the full IL .xt OF the decision
of the Supreme Court Of California in the
Pasadena case, wherein prohibition and
restriction under the local option powers of
communities are SUI dained.
EX PAETE CAMPBELL or HABEAs CORES
(No. 2,32il. 1.-The petitioner is before us on q
writ of habeas corp1ls to test the validity of an
ordinance OF the city of Pasadena duly passed
approved ana pu blished for a violation of
which he has been duly convicted The ar,1i-
nance was passed February 49, 1887 and took
effect on the first Monday in May, 1857 The
following provisions only are german to the
matter fore US
Section l. 1t shall be and is hereby made
unlawfEl Tor any person or persons, either as
owner principal agent, servant or emDloye to
establish, open, keep maintain, or carry on, or
assist in carrying on within the corporate limits
OF the city OF Pasadena, any tippling house.
| draIn-shop, cellar, saloon, bar bar room. sam
| pie-Ioom, or Other place where spirituous,
/ Vlneus, malt or mixed liquors are sold or given
| away; provided that the prohibitions
/ OF this ordinance shall not apply to the sale of
liquors for medicinal purposes by regularly
! licensed druggist, upon the prescription of a
| physician entitled TO practice medicine under
| the laws OF the State of California nor shall
such prohibitions apply to the sale of such
| hquors ior chemical or medicinal purposes"
| Violations OF The ordinance are declared to be
misdemeanors. The complaint under which
petitioner was convicted charged that the said
campbell at the time and place aforesaid May
>, 1881 dli keep and maintain q certain dram
shop. saloon ana bar-Toom, where spirituous and
| malt liquors were then sold said defendant be-
ing then and there the owner thereof; that said
defendant was not then and there a regularly
| licensed druggist and the liquors then and there
solo by him were not sold for either chemical or
medicinal purposes.
, In addition To the facts above stated, counsel
| Tor the petitioner and for the people have stipu-
lated: That there has not since the Ist day of
May, 1897, been any ordinance of the city OF
Pasadena requiring n license to sell yinous
malt or mixed liquors in any quantity.
That there was an ordinance of the city OF
Fasadena requiring license to retail spirtuous,
Einous. malt and mixed liquors. passed in June
1885. which was in force up to the LIST dav OF
| May, 1887; and the said city issued license un-
der said ordinance to petitioner retail and sell
to the list day of May, 1887; but said ordinances
was repealed February 10, 1857, the repeal tax
| ing effect May /, 1887.
That the petitioner has paid all county and
| municipal taxes assessed against the spirituous
| vlnons, malt and mixed liquors owned kept
and sold by him in said saloon in said city OF
| Pasadena"
1t is claimed by the petitioner that the ordi-
| nance is void, because it conflicts with Section
| -, Article l. Of the Constitution of this State
winch provides that no person shall be deprived
OF ll1e liberty or property without due process
OF law. 1t has been held that an ct which sub
stantialiy destroys the property in intoxicating
liquors owned and possessed by persons within
i ine STATE when the Act took effect, by prevent
Ing the sale, keeping or giving away of the
| same, except for medicinal purposes is violative
OF THIS provision of the Constitution and in its
| apphcation TO such liquors is imperative and
void: lWynehaner VS.. The People, 10 N. Y,
S78; "A n. Y, 516.)
That question, however, is not properly before
us III thlS proceeding. 1t is not shown by the
| record when, If ever, the petitioner became the
owner of the liquor sold. The last paragraph of
| the above stipulated facts, as to pavment of
| taxes, was intended, no doubt, to present the
| question arising out of ownership for an onin-
! ion, but the language is SO uncertain in its
effect that it ought not to be taken as the basis
OF a decision upon SO grave and important a con-
s sun question IN all inquiries upon mat
| tiers of this kind the facts should be full and
clear, or the Court should refuse to consider
| the question. (Bartemeyer VS.. Iowa Is Wall.
| 1921 '
The same may be said of the contention that
the ordinance is void under Section s. Article /.
Subd. of the Constitution of the United States
| because TO distinction is made between i'm
! ported wines and liquors remaining i'll the oriri-
mai and unbroken packages, and other wines
and liquors; there is nothing TO show the
character of the liquors sold by the petitioner.
Furthermore the petitioner is charged with
| keeping bar-rcom and we consider the case
only upon that basis. 1t is further claimed that
the ordinance is void because under the NUM-
cipal Corporation Act the city of Pasadena wa 9
not authorized to pass the ordinance-(Stats of
1855, chapter MIX, Section So, Subd l-IO); for
| If the Legislature had intended to confer the
| power W pTOHlDll the sale OF wines and linn0rS
| upon cities of the sixth class (of which Pasa-
dena is one), it wonld have said so in direct
| terms, as was done in the case of cities of the
| fourth class"
Prior to the adoption of the Constitution of
| 1879, the local authorities possessed only such
powers as were expressly, or by necessary i'm
plication, conferred upon them by their char
tiers. 1t is now provided that ANY county
city, town or township may make and enforce
within its limits all such local police. sanitary
and other regulations are not in conflict with
a ri "a Ia II
tution.) Under this provision every county
city, town or township may adopt and enforce
such constitutional police regulations as are not
IN conflict with general laws. 1t has the same
power over its own local police and sanitary af-
fairs as were formerly granted by the Legislat-
ure, and, unless the exercise thereof will con.
| tiic with the operation of general laws il may
make and enforce the same through its local
| government. That such law as the one before
us is not lepugnant to any clause of the Consti.
| tuticn of the United States there can he no
| doubt. The Supreme Court Of the United States
| has decided uniformly that: The usual ordi-
nary legislation of the States regulating or nro.
| hlblting the sale of Intoxicating liquors rasss
! no question underline Constitution of the United
| States prior to the Fourteenth Amendment of
| that instrument. The right to sell Intoxicating
| liquors is not one ofthe privileges and immuni-
| ties of the citizens OF the United States which
| by that amendment the States were forbidden
| to abridge." (bartemeyer VS.. Iowa, supra: Ii
| cense cases, Howard 50i; Beer Co. VS. Mass.
81 U. s., 32) and that the power to license rerll
| late prohibit Iippling houses is a constii1I-
| tiOnal right. which may be enforced as a police
| regulation through proper legislation is no
longer an open question III this state In ex parte
| Smith and keating, 3S Cal, 7GS, it was said
Legislatures have enacted a variety of laws
which undoubtedly in a general sense 8 fleet the
rights OF life, liberty, property, safety and hap
piness by way of restraint. Of such are laws
regulating the slaughter of animals the inter
ment of the dead, the erection of buildings in
cities and towns OF indammable material, the
| manufacture and keeping of gunpowder and
other explosive compounds, the vending of
poisonS and other noNious drugs, the sale Of in
toxicating beverages 10 certain classes of per.
sons, as Indians and even to all classes of per
sons, as in the case of the prohibitory laws of
Maine and Massachusetts" (EX parte McClain
81 Cal, 437)
Unless we are prepared, therefore to override
the decisions of our own State, and disregard
the opinions of the Supreme Court of the United
States, we must hold that the ordinance in cues
ton is free from objection as far as its constiu-
tionality is concerned; that it is not vioative of
any Clause of the Constitution of the United
States, and that it is in its scope and operation
within the police powers which may be lawfully
enforced under the provisions OF the Constitu-
ton of this State.
There is but enc quCs ion remaining to re cor.
sidered: Is the ordinance =" in Conflict with
general laws" Section IL, Article XII, of the
Constitution, clearly subordinates the powers
conferred upon counties cities, towns ana toWr-
ships to the general laws of the State. 1t is
claimed that the ordinance before us is in con-
flict with general laws because che one prohib-
its the othermak full provision for the grant
ing of licenses for the sale of spirtuous, yinous
and malt liquors." In support of this contention
counsel cites Sections $780, 1881, 33S2, 4245 4lUS
of the Political Code, and Subd. SO, Section
%, of the County Government Act, Stats, of
1883, p. S03. The provisions of the Political
Code referred to are unconstitutional and
no longer operative. This was decided in
People VS.. Martin, 60 Cal, 49, where it is
SAID that % the taking of the power to impose
such taxes Qicenses) from the Legislature and
vestng it in the local authorities is but another
OF the many evidences to be found in the new
Constitution of the intention to bring matters
OF local concern home TO the people, Those
sections of the Code, therefore, stand annulled
by the Constitution. Section p of the County
Government Act confers upon the Boards of
| Supervisors in their respective counties power
| to make and enforce "all such local police,
sanitary and other regulations as are not in CON
filct with general laws. There is nothing in the
case before us to show whether the Board of
supervisors OF Los Angeles county have ever
| MADE any regulations with respect to the sale
oil wines or liquors in saloons and bar-rooms but
manifestly such regulations if made could not
operate to dlvest the authorities of the city of
| the right to legislate upon the same subject
ana enforce such regulations within the city
| limits. The regulations of the Board of Super
yisors wolld not be general law within the
meaning OF the provisions of Section H. Article
NJ of the Constitution.
Our attention has not been called to any gen
era law from which an intention on the part of
| the Legislature TO prohibit such ordinance es
| the one before us-local police regulations in
IN cit:es-ean be inferred. 1t is true as claimed